My blog on how superstitious I am about the Red Sox is here. Last week, Suzanne Lewis, a very good friend who I met in law school texted from Fishers, Indiana. Fishers is the mid-west headquarters of Ethical Grounds. Friday, the opening night of the Sox-Yanks series, Suz texted “Go Sox!” to me, her husband, and their son (my godson Sammy) along with a picture of a Neil Diamond album cover (The Sox play Neil’s Sweet Caroline over the loudspeakers in the middle of every 8th inning at Fenway.)

Upon receiving the text, my superstition gene went into overdrive.

I didn’t reply. That would have been bad luck. But, the next morning, after the Sox had hung on to win Friday night’s game, I texted Suz that superstition dictated that I make the picture my lock screen. So I did. And then Monday night & last night happened.

Per the article in the ABA Journal, the goal is for all legal employers to take the pledge by January 1.

Here’s the pledge:

“Recognizing that substance use and mental health problems represent a significant challenge for the legal profession, and acknowledging that more can and should be done to improve the health and well-being of lawyers, we the attorneys of _______________________ hereby pledge our support for this innovative campaign and will work to adopt and prioritize its seven-point framework for building a better future.”

The seven-point framework:

Provide enhanced and robust education to attorneys and staff on topics related tow well-being, mental health, and substance use disorders.

Disrupt the status quo of drinking based events by challenging the expectation that all events include alcohol, and, ensuring there are non-alcoholic alternatives when alcohol is served.

Develop visible partnerships with outside resources committed to reducing substance use disorders and mental health distress in the profession: healthcare insurers, lawyer assistance programs, EAPSs, and experts in the field.

Develop proactive policies and protocols to support assessment and treatment of substance use and mental health problems, including a defined back-to-work policy following treatment.

Actively and consistently demonstrate that help-seeking and self-care are core cultural values, by regularly supporting programs to improve physical, mental, and emotional well-being.

Highlight the adoption of this well-being framework to attract and retain the best lawyers and staff.

The ABA’s program is a 2 year process. The first year is focused on legal employers to recognize the problem and, as stated above, pledge to commit to promoting awareness & the seven-point plan. Then, in year 2, the ABA will ask legal employers to complete a commitment form that describes steps taken in the prior year.

In my view, whether formally taking the pledge or not, the ABA’s program provides a fantastic vehicle for legal employers to make the workplace healthier.

I’ve blogged often on issues related to lawyer wellness. Most of my posts have focused on lawyer impairment.

A related issue is mindfulness. Or, as I’ve blogged, workplace happiness. In short, does your firm or office foster a positive environment in which people are happy to work? Or, as James Goodnow wrote at Above The Law, is your firm or office Blinded By the Benjamins?

Earlier this year, the Vermont Supreme Court took a step towards fostering a more positive environment for Vermont’s legal profession when it created the Commission on the Well-Being of the Legal Profession. The Commission met last week. Members shared updates from their various committees. On the issue of mindfulness, I was excited and encouraged by the report from the Legal Employers Committee.

Laura Wilson & Ian Carleton chair the committee. I’m not going to delve into the details of their update. Suffice to say, it sounds like their committee is doing a fantastic job looking at steps that legal employers can take to make workplaces healthier.

I’ve been as encouraged by the buy-in I’ve heard from lawyers & firms in my travels around the state. A few years ago, nobody wanted to talk about impairment, wellness, or mindfulness. Now, not only are legal employers talking the talk, they’re starting to walk the walk. Which brings me to the point of this post.

If your workplace is looking at ways to incorporate wellness & mindfulness into its culture, remember this: it’s marathon, not a sprint. What do I mean by that? Well, let me turn to a different sport.

As most of you know, I used to coach high school basketball. Any coach will tell you this: whatever you do every day in practice, that’s probably what your team will be good at doing. If you shoot a lot, your team will probably shoot well. If you work a lot on plays against a zone defense, your team will probably execute its zone offense well. If you do a little of a lot, but not a lot of any one particular thing, your team will probably be okay at a lot, but not very good at much of anything.

The same goes for incorporating wellness and mindfulness into your workplace. If you want wellness and mindfulness to be part of your workplace culture, you have to practice them. Not just talk about wellness for 50 minutes at the firm retreat. Not just mention mindfulness at every other staff meeting. But do them.

Every. Single. Day.

And then again the next day.

Over and over.

For wellness & mindfulness to become part of your workplace culture, you have to make them habits. It’s that simple. As they say, practice makes perfect.

Because it so resonates with me, I’m pasting in the third of the four strategies that Jeena recommends:

FOR LASTING CHANGE, THINK LONG TERM

As with buying a gym membership—you actually have to go to the gym and work out regularly to see benefits—mindfulness training has to be ongoing.

Anne Brafford, author of Positive Professionals: Creating High-Performing Profitable Firms Through the Science of Engagement, says, “To be effective, programs designed to build complex people skills like mindfulness can’t end with a single training session. This train-and-go approach is popular among organizations—with the result that billions of dollars are wasted annually because trainees end up using only about 10 percent of what they learn.”

For a mindfulness training to stick, Brafford says, “organizations will want to provide ongoing support for learning. This includes, for example, providing opportunities or encouragement to apply the new skills, reinforcement learning with feedback and reminders about its relevance and importance, supervisor and peer support, and opportunities for ongoing development.”

Warning: today’s post isn’t as light-hearted as some of the #fiveforfriday intros.

The Substance Abuse and Mental Health Services Administration is a branch of the U.S. Department of Health & Human Services. In 2015, SAMHSA conducted a national survey on drug use and health. The survey found that approximately 4% of Vermonters had experienced serious thoughts of suicide over the previous year. The Vermont results are here.

There are approximately 2,700 lawyers with active licenses in Vermont. If lawyers suffer at the same rate as other Vermonters, 108 Vermont lawyers have had serious thoughts of suicide over the past year.

108.

Okay, I know the math might not be accurate. However, consider the following:

In 2016, the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Clinic released a study on lawyers’ behavioral health. The ABA announced the study’s results here.

Per the announcement, the study revealed “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.” In addition, the study “determined that lawyers experience alcohol use disorders at a far higher rate than other professional populations, as well as mental health distress that is more significant.”

So, given that lawyers suffer at higher rates than other professionals, 4% might not be too far off.

Fact: in the past 3.5 years, 5 Vermont attorneys have committed suicide.

Fact: 2 of those 5 took their lives in 2018.

Fact: since September 2016, as many lawyers have had their licenses transferred to disability inactive status due to mental health or substance abuse issues as did in the previous 16 years.

There’s a problem.

Fortunately, the profession has started to address it.

In response to the ABA/Hazelden Study, three groups spurred creation of a National Task Force on Lawyer Well-Being. The groups:

On January 2, 2018, the Vermont Supreme Court issued a charge & designation creating the Vermont Commission on the Well-Being of the Legal Profession. The Commission includes a representative from each of the stakeholder group mentioned in the National Task Force’s Practical Recommendation for Positive Change. Each Commission member has formed a sub-committee to review the recommendations for that particular stakeholder group.

For example, I’m on the Commission as the representative from the “attorney regulators” stakeholder group. My sub-committee includes one representative from each of the following: the Professional Responsibility Board, the Board of Continuing Legal Education, the Board of Bar Examiners, the Character & Fitness Committee, and the Judicial Conduct Board. I also appointed a lawyer who has long represented lawyers and judges in professional conduct investigations and prosecutions. My sub-committee will review and report on recommendations that the Court’s various regulatory bodies ensure that lawyer health & wellness is prioritized throughout the licensing/regulatory scheme.

The Commission’s work will be the subject of the plenary session at the Vermont Bar Association’s upcoming midwinter meeting. For more information, including how to register, please visit this site.

Please consider sharing the quiz on social media. Hashtag it – #fiveforfriday

Question 1

Which is different from the others?

A. A contingent fee agreement

B. An hourly fee agreement

C. A former client’s consent to a conflict

D. Concurrent clients’ consent to a conflict

Question 2

There phrase “persons of limited means” appears four times in a single rule.

What’s the topic of the rule?

Question 3

There’s a rule that prohibits a lawyer from counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulent. In 2016, a the Supreme Court adopted a Comment to the rule. The Comment makes it clear that lawyers may:

There’s a rule that prohibits a lawyer from doing something, unless it’s:

to another lawyer; or,

to someone with whom the lawyer has a family relationship, close personal relationship, or prior professional relationship.

What’s the “something?”

Question 5

Vincenzo Leoncavallo was an attorney and judge in Italy. In 1865, he presided over a murder trial that involved a love triangle: the victim was stabbed to death by a romantic rival. The victim was Judge Leoncavallo’s son’s babysitter.

Fast forward to 1910. It was then, 108 years ago, that the first public radio broadcast took place. The broadcast was of 2 operas.

One of the operas had been composed by Judge Leoncavallo’s son. It involved a love triangle in which Silvio was stabbed to death by Canio, a jealous romantic rival.

Name the opera.

Bonus: name the character for whom Silvio and Canio shared dueling affections.

“The benefits of increased lawyer well-being are compelling and the costs of lawyer impairment are too great to ignore. There has never been a better or more important time for all sectors of the profession to get serious about the substance use and mental health of ourselves and those around us.”

“To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.”

Let me re-emphasize: “These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.“

The note goes on:

“The legal profession is already struggling. Our profession confronts a dwindling market share as the public turns to more accessible, affordable alternative legal service providers. We are at a crossroads. To maintain public confidence in the profession, to meet the need for innovation in how we deliver legal services, to increase access to justice, and to reduce the level of toxicity that has allowed mental health and substance use disorders to fester among our colleagues, we have to act now. Change will require a wide-eyed and candid assessment of our members’ state of being, accompanied by a courageous commitment to re-envisioning what it means to live the life of a lawyer.”

The report is 73 pages long and makes recommendations for judges, legal employers, law schools, bar associations, professional liability carriers, and lawyers assistance programs. Most relevant to this blog, the report makes recommendations for regulators. They begin on page 25 and, per the table of contents, can be summarized as follows:

Take Actions to Meaningfully Communicate That Lawyer Well-Being is a Priority

Adopt Regulatory Objectives That Prioritize Well-Being

Modify the Rules of Professional Responsibility to Endorse Well-Being as Part of a Lawyer’s Basic Duty of Competence

Expand Continuing Education Requirements to Include Well-Being Topics

Require Law Schools to Create Well-Being Educations for Students as an Accreditation Requirement

Adjust the Admissions Process to Support Law Student Well-Being

Reevaluate Bar Application Inquiries About Mental Health History

Adopt a Rule for Conditional Admission to Practice Law

Publish Data Reflecting Low Rate of Denied Admissions Due to Mental Health Disorders and Substance Use

I will do my part to review each recommendation for regulators with the appropriate body, whether the Professional Responsiblity Board, the Board of Bar Examiners, the Character & Fitness Committee, or the Continuing Legal Eduction Board. But, as I mentioned, the report makes recommendations for many other groups. Nearly each and every one of us fits into it at least one of those groups.

Since I started this blog, I’ve not received more e-mails, texts, or DMs suggesting that I post about a particular topic than I have this week. The suggestions flowed from an article that ran in Saturday’s New York Times: The Lawyer, The Addict.

Read it.

I first blogged on this topic in March 2016 with the post Lawyers Helping Lawyers. The post referred to a study done by the ABA and the Hazeldon Betty Ford Clinic. The study found “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”

In my post, I noted that “[e]xtrapolating from the ABA/Hazeldon study, approximately:

500 active Vermont attorneys are problem drinkers

500 active Vermont attorneys exhibit signs of problem anxiety

720 active Vermont attorneys struggle with some level of depression.”

I added “[h]ere’s a real number, not an extrapolation: over the past 14 months, three Vermont attorneys took their own lives.”

Pointing out that, in my experience, lawyers are often the first to know that another lawyer is struggling to cope with addiction or mental health issues, I urged lawyers not to come at this problem from the perspective of “when do I have a duty to report another lawyer?” Instead, I argued:

“How about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?”

The beat goes on.

Since my post 16 months ago, 5 Vermont lawyers have been transferred to disability inactive status or placed on interim suspension as a result of substance abuse and/or mental health issues. For those 5 lawyers, help came too late not to involve the disciplinary process.

Whatever we do to address this problem, we need to make sure it includes spreading the word that it is no longer sufficient to wait to refer someone to help until he’s hospitalized or her practice has cratered. Refer early. Not to save clients from harm, but to help a fellow human being get into recovery or treatment.

After the NYT article ran this weekend, some wonderful, caring lawyers engaged me in social media conversations on the need to do better as a profession on this issue. I love that they were involved and I thank each and every one of them.

We need to do more. The fact that “talking about it on social media” is a positive step shows how far we have to go.

My original post includes links to resources:

“Help is available.”Contact the Vermont Lawyers Assistance Program. It’s confidential and the volunteers are exempt from the reporting requirement in Rule 8.3. Josh Simonds is the Director and is an excellent resource. A referral to Josh’s program will not result in a referral to the disciplinary prosecutors.

“Or, call me. It’s confidential. I can refer an attorney to the LAP program or to one of the PRB’s assistance panels. The panels, in turn, have the authority to refer a lawyer to LAP or to any type of counseling. I CANNOT refer the attorney to the disciplinary office.

Understanding that, if help arrives early, the lawyer will not lose his or her law license

There’s probably a lot more to do. These would just be a start.

We cannot let the topic fade into the background. The numbers prove that lawyers need help now. We must provide it.

As a profession, we’ve gone on & on for years about “access to justice” and haven’t come close to solving that problem. In my book, “access to justice” necessarily includes “access to legal services.” Not to just any legal services, but to competent legal services. In that sense, this is an access issue.